Citation Nr: 1327500 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-35 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date earlier than December 9, 2005, for service connection for depressive disorder. 2. Entitlement to an initial disability rating higher than 30 percent for depressive disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to January 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision by the San Juan, Puerto Rico Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO granted service connection for an acquired psychiatric disability described as depressive disorder. The RO made service connection effective December 9, 2005, and assigned a disability rating of 30 percent. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issue of a higher initial rating for depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT VA received the Veteran's claim for service connection for depression on December 9, 2005. CONCLUSION OF LAW Service connection for depressive disorder may not be effective earlier than December 9, 2005. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Over the years the RO has issued letters providing the Veteran VCAA notice regarding the claims he has submitted. A March 2003 VCAA notice letter addressed the information and evidence necessary to substantiate a claim for service connection for a disability. A January 2006 VCAA notice letter addressed the information and evidence necessary to substantiate a claim for service connection for depression as secondary to another disability. A July 2007 VCAA notice letter and an attachment to a November 2007 letter each informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. Through that correspondence, then, the RO provided the Veteran VCAA notice relevant to his claim for an earlier effective date for service connection for depressive disorder and his claim for a higher initial rating for depressive disorder. The claims file contains the Veteran's service treatment records, post-service treatment records, VA examination reports, records from the United States Social Security Administration (SSA), and statements from the Veteran and his spouse. The Veteran has not reported the existence of any evidence that is not associated with the claims file and is relevant to the issue the Board is deciding at this time, the effective date for service connection for depressive disorder. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claim that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Effective Date The Veteran is seeking an effective date earlier than December 9, 2005, for service connection for depressive disorder. Over the years the Veteran has raised a number of claims related to service connection and compensation for acquired psychiatric disability. To help clarify the issue currently on appeal, the Board will recount the procedural history regarding those claims. The RO received in November 1971 the Veteran's earliest claim for compensation for service-connected disability. The disability the Veteran claimed was pain in both legs. The Veteran had VA physical and mental health examinations in 1972. In a February 1972 psychiatric examination the examiner provided a diagnosis of anxiety neurosis. In a June 1972 rating decision, the RO denied service connection for a leg condition and for a mental disorder including anxiety neurosis. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105 (West 2002). A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). The Court has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received VA will reconsider the claim. 38 C.F.R. § 3.156(c). In July 1972 the Veteran filed an NOD with the June 1972 rating decision. In October 1972 the RO issued a statement of the case (SOC) on the issue of service connection for pain in the legs and a nervous condition secondary to pain in the legs. After the Veteran initiates an appeal of a VA rating decision by submitting an NOD, and VA issues an SOC, the Veteran must perfect the appeal by filing a substantive appeal. See 38 U.S.C.A. § 7105 ; 38 C.F.R. §§ 20.202, 20.302 (2012). The substantive appeal must be received within 60 days after the RO mails the SOC, or within one year after the RO mails the rating decision that the claimant is appealing, or else the rating decision is final. 38 C.F.R. §§ 20.302, 20.1103 (2012). The Veteran did not submit a substantive appeal regarding the issues denied in the June 1972 rating decision. No additional new and material evidence was received within the appeal period, and no additional service department records were received after the June 1972 rating decision. Therefore, the June 1972 rating decision became a final decision. In January 1997 the Veteran submitted a claim for service connection for disabilities including post-traumatic stress disorder (PTSD). In a July 1997 rating decision the RO denied service connection for PTSD. The Veteran did not appeal that decision. On December 9, 2005, the RO stamped as received the Veteran's claim for service connection for depression due to his service connected condition. At that time service connection was in effect for the Veteran's type II diabetes mellitus, peripheral neuropathy of both lower extremities, and erectile dysfunction. In a March 2006 VA mental disorders examination, the examiner found that the Veteran had depressive disorder, not otherwise specified. As noted above, in the April 2006 rating decision the RO granted service connection for depressive disorder and assigned an effective date of December 9, 2005. In a February 2007 rating decision the RO denied service connection for claimed neurological changes secondary to medications used to treat service-connected disabilities. In March 2007 the Veteran filed an NOD with the February 2007 rating decision. In the same communication the Veteran also wrote, "Consider the anxiety neurosis as a clear and unmistakable error as well as the effective date. Please reevaluate." In July 2007 the RO issued a letter indicating that the RO was working on the Veteran's claim for service connection for anxiety neurosis. In July 2007 the Veteran wrote that in February 2007 a VA clinician found that he had generalized anxiety disorder and major depressive disorder. The Veteran noted that the diagnoses were consistent with anxiety neurosis, for which the RO denied service connection in the June 1972 rating decision. The Veteran stated, "It is important to mention that I never received any SSOC of such rating decision. Please take the appropriate action on that matter and consider it a clear and unmistakable error including as a [consequence] an early effective date." In August 2007 the RO sent the Veteran a letter indicating that the RO was working on the Veteran's claim for anxiety neurosis secondary to his service connected depressive disorder and that the RO was working on the Veteran's claim of clear and unmistakable error in VA's rating decision of June 1972. In October 2007 the RO issued an SOC on the issues of a higher initial rating for depressive disorder and an effective date earlier than December 9, 2005, for service connection for depressive disorder. In a November 2007 rating decision the RO denied reopening of a previously denied claim for service connection for anxiety neurosis. The RO found that evidence received since the previous denial was not new and material. Later in November 2007 the Veteran informed the RO that he already had a claim pending for a higher rating for a psychiatric disorder. The Veteran stated that the evidence previously submitted was for the claim for a higher rating. The Veteran asked the RO to disregard his claim for service connection for anxiety neurosis. A rating decision is final and binding, except that a prior determination may be reverse or amended where the evidence establishes clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104, 3.105(a) (2012). A CUE claim, then, is a means to reverse an earlier final claim. In his March and July 2007 statements the Veteran asserted that there was CUE in the June 1972 rating decision in which the RO denied service connection for anxiety neurosis. The RO provided the Veteran notice about CUE claims in August 2007. The RO had not issued any decision on the Veteran's CUE claim when, in November 2007, the Veteran clarified that he was seeking a higher rating for a psychiatric disability and that the RO should disregard a claim for service connection for anxiety neurosis. The Veteran thus withdrew his CUE claim before the RO acted on it. There has been no rating decision regarding CUE, and there is no CUE claim before the Board. The Veteran's appeal for an earlier effective date for service connection for depressive disorder is before the Board. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If the claim is received within one year from the date of separation from service, the date of separation will be the date of the award. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Veteran did not file a claim for service connection for depressive disorder within one year after his January 1970 separation from service. Therefore his date of separation may not be the date of the award for service connection for depressive disorder. The Veteran filed a claim for service connection for depressive disorder in 2005, and VA received that claim on December 9, 2005. As the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later, it follows that the effective date cannot be earlier than the date of receipt of the claim, regardless of when entitlement arose. Therefore the effective date cannot be earlier than the December 9, 2005, date of receipt of the claim. The RO adjudicated the December 2005 claim as an original claim for service connection for depression, and not as a request to reopen any previously denied for service connection for a mental disorder. Even if the December 2005 claim were treated as a request to reopen, after final disallowance of, a claim for service connection for a mental disorder, under VA regulations, the effective date would be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). In such a case the effective state still could not be earlier than the December 9, 2005, date of receipt of the new claim. ORDER Entitlement to an effective date earlier than December 9, 2005, for service connection for depressive disorder is denied. REMAND The Veteran appealed the initial 30 percent rating that the RO assigned for his depressive disorder. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's appeal of the initial disability rating that the RO assigned raises the issue of the appropriate rating or ratings for the entire period since the effective date of the grant of service connection, with consideration of whether staged ratings are warranted. The extent of the Veteran's service-connected depressive disorder and its effects on his ability to function in daily life, including employment, is addressed by evidence including mental health treatment records and examination reports, statements from the Veteran, and a statement from his wife. In a July 2010 statement the Veteran's wife described the Veteran's symptoms and increasing impairment. She indicated that in part because of mental deterioration the Veteran needed help with every activity. She stated that he became confused, jumped and yelled in response to noise, had crying spells, isolated himself, and did not manage dressing and grooming independently. The mental impairment picture the Veteran's wife presented appears more severe than the picture described in the most recent VA mental disorders examination, which was performed in June 2010. To help with evaluation of the apparent differences, and to compile reasonably complete and current evidence regarding the effects of the Veteran's depressive disorder, the Board will remand the rating issue for a new VA mental disorders examination, with review of the file, including the 2010 statement from the Veteran's wife. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination to address the current manifestations, effects, and extent of the Veteran's service-connected mental disorder, which has been described as depressive disorder. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the record, specifically including a July 2010 statement from the Veteran's spouse regarding the manifestations and effects of the Veteran's mental disorder. Ask the examiner to examine the Veteran and report on the manifestations, effects, and extent of the Veteran's mental disorder, including the extent of occupational and social impairment as a result of the mental disorder. 2. Thereafter review the expanded record and reconsider the remanded claim. If the claim remains less than fully granted, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs